Opinion
Index No. EF2020-266655
02-09-2024
Robert Z. Dadekian M.D., INDIVIDUALLY AND DOING BUSINESS AS TROY ARTHRITIS CARE, Plaintiffs, v. Linda J. Laveway, Defendant.
LUIBRAND LAW FIRM, PLLC Kevin Luibrand, Esq. Attorney for Plaintiffs MAYNARD, O'CONNOR, SMITH & CATALINOTTO, LLP Justin Gray, Esq. Attorney for Defendant
LUIBRAND LAW FIRM, PLLC Kevin Luibrand, Esq. Attorney for Plaintiffs
MAYNARD, O'CONNOR, SMITH & CATALINOTTO, LLP Justin Gray, Esq. Attorney for Defendant
HON. ADAM W. SILVERMAN ACTING JUSTICE
The following e-filed documents, listed by NYSCEF document 32-47, 96-104 were read on Defendant's Motion for Summary Judgment Dismissing the Complaint (Motion # 1).
The following e-filed documents, listed by NYSCEF document 80-95, 105-110 were read on Plaintiffs' Motion for Summary Judgment on Liability (Motion # 2).
I. Introduction
In this defamation per se action, a doctor challenges the online statements made by the caretaker of a prospective patient who was asked to leave the doctor's office after a confrontation.
The COVID-19 pandemic and recent presidential elections have spurred passionate, and often, confrontational positions. Despite a marked increase in antagonism and vitriol in the Nation's political discourse, our common law of defamation continues to recognize the significant interest that people hold in their good name and protects against unlawful attacks. Without detracting from this safeguard, our state Constitution makes clear that the marketplace of ideas must also be protected and does so by limiting recovery even in potentially injurious instances when they involve opinions.
Plaintiff should expect nothing less than the preservation and protection of his good name, however, in this case, Defendant is entitled to summary judgment dismissal because the speech at issue was an opinion on a matter of public concern.
II. Facts and Procedural History
On June 22, 2020, Defendant brought her mother to an appointment with Plaintiff Dr. Robert Z. Dadekian at his medical practice, Plaintiff Troy Arthritis Care. At issue in this case is the following Facebook post that Defendant published on her personal page following a confrontation with Plaintiff during that visit:
"FYI... if you support President Trump this Office will ask you to leave - Dr. Robert Zaven Dadekian, MD. They make no secret about it, I had a Trump mask & was reading a Glenn Beck book. The office staff brought it to the Dr's attention and he said to LEAVE! I'd like to see folks call his office to let him Trump supporters are watching. 518-274-0044. This type of action tells you a lot about the left."
On June 26, 2020, Plaintiffs' counsel sent a letter to Defendant informing her that Plaintiffs were commencing a lawsuit against her. Defendant then removed the post. On July 29, 2020, Plaintiffs commenced this action by filing a summons with notice. On August 24, 2020, Plaintiffs filed a complaint alleging Defendant disregarded Plaintiffs' COVID-19 policies and, because Defendant refused to comply, Plaintiff requested that Defendant leave the premises. Defendant joined issue by filing an answer on February 17, 2021. A request for judicial intervention was not filed until January 26, 2022. In late July and early August 2022, Defendant changed counsel and filed an amended answer. Discovery did not significantly proceed until late 2022 and a bill of particulars was provided on or around March 3, 2023. After discovery disputes, Plaintiffs subsequently withdrew all causes of action except defamation per se.
Discovery is complete and the Court must now determine competing motions for summary judgment. Defendant moves to dismiss the action pursuant to CPLR 3211 and 3212 and argues the Facebook statements are nonactionable opinion and, alternatively, that they are not injurious to Plaintiffs' trade, business, or profession and therefore, the statements cannot constitute defamation per se. Defendant also asserts the statements were privileged by the "single instance rule" that denies liability where a professional is charged with ignorance or mistake on a single occasion only and not accused of general ignorance or lack of skill. Beyond dismissal, Defendant requests sanctions and attorney fees pursuant to CPLR 8303-a, Civil Rights Law § 70-a and/or 22 NYCRR 130-1.1 because Plaintiffs' case lacks merit and is intended to stifle public debate.
Plaintiffs oppose Defendant's Motion and also separately move for summary judgment on the issue of liability. Plaintiffs assert that Defendant's posts were statements of fact that were false and no question of fact remains.
III. Relevant Law
a. Summary Judgment Standard
Generally, a party seeking summary judgment must establish prima facie entitlement to judgment as a matter of law by presenting sufficient evidence that there is no doubt as to the absence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v NY Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). This Court "must view the evidence in the light most favorable to the nonmoving party and accord such party the benefit of every reasonable inference that can be drawn therefrom" (Aretakis v Cole's Collision, 165 A.D.3d 1458, 1459 [3d Dept 2018]; see Gadani v Dormitory Auth. of State of NY, 43 A.D.3d 1218, 1219 [3d Dept 2007]).
In opposition to a motion for summary judgment, the nonmoving party must establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). In opposing a motion for summary judgment, the nonmoving party "must produce evidentiary proof in admissible form... or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form" (Zuckerman v City of New York, 49 N.Y.2d at 562; accord Miller v Lu-Whitney, 61 A.D.3d 1043, 1047 [3d Dept 2009]).
Notably, "summary judgment is particularly favored by New York courts in libel cases" (Khan v New York Times Co., Inc., 269 A.D.2d 74, 77 [1st Dept 2000]; see Immuno AG. v Moor-Jankowski, 77 N.Y.2d 235, 256 [1991] [The Court of Appeals stated that it reaffirmed its "regard for the particular value of summary judgment, where appropriate, in libel cases"]; Karaduman v Newsday, Inc., 51 N.Y.2d 531, 545 [1980]; Reus v ETC Hous. Corp., 72 Misc.3d 479, 484 [Sup Ct, Clinton County 2021, Lawliss, J.], affd 203 A.D.3d 1281 [3d Dept 2022], lv dismissed 39 N.Y.3d 1059 [2023]; 44 NY Jur 2d Defamation and Privacy § 251).
b. Defamation
"The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se" (Jule v Kiamesha Shores Prop. Owners Assn. Inc., 210 A.D.3d 1330, 1334 [3d Dept 2022], lv dismissed 39 N.Y.3d 1124 [2023]; see Radiation Oncology Services of Cent. New York, P.C. v Our Lady of Lourdes Mem. Hosp., Inc., 221 A.D.3d 1324, 1332 [3d Dept 2023]). "Pertinent here, courts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether" (Radiation Oncology Services of Cent. New York, P.C. v Our Lady of Lourdes Mem. Hosp., Inc., 221 A.D.3d at 1332).
i. Falsity
Fundamentally, only facts "are capable of being proven false" (Gross v New York Times Co., 82 N.Y.2d 146, 153 [1993]). "An expression of pure opinion is not actionable..., no matter how vituperative or unreasonable it may be" (Steinhilber v Alphonse, 68 N.Y.2d 283, 289 [1986]). "A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be an opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts" (Davis v Boeheim, 24 N.Y.3d 262, 269 [2014] [internal quotation marks, brackets and citations omitted]). Likewise, a statement regarding possible future conduct that includes the facts it is based upon constitutes pure opinion (see Silverman v Clark, 35 A.D.3d 1, 16 [1st Dept 2006]).
"Whether a particular statement constitutes a factual assertion or nonactionable expression of opinion is a question of law for the court to resolve" (Gentile v Grand St. Med. Assoc., 79 A.D.3d 1351, 1352 [3d Dept 2010]). "Distinguishing between assertions of fact and nonactionable expressions of opinion has often proved a difficult task" (Brian v Richardson, 87 N.Y.2d 46, 51 [1995]). Courts must consider
"(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal... readers or listeners that what is being read or heard is likely to be opinion, not fact"(Mann v Abel, 10 N.Y.3d 271, 276 [2008] [internal quotation marks and citations omitted]; accord Thomas H. v Paul B., 18 N.Y.3d 580, 584 [2012]; see Immuno AG. v Moor-Jankowski, 77 N.Y.2d at 243 [1991] [Holding the New York Constitution provides broader speech protections than the United States Constitution], cert denied 500 U.S. 954 [1991]).
"[I]n distinguishing between actionable factual assertions and nonactionable opinion, the courts must consider the content of the communication as a whole, as well as its tone and apparent purpose" (Brian v Richardson, 87 N.Y.2d at 51 [1995] [internal quotation marks and citations omitted]). Even "statements which might otherwise be viewed as assertions of fact may take on an entirely different character" in full context (id. at 52). "Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff" (Davis v Boeheim, 24 N.Y.3d at 270 [internal quotation marks, ellipsis, and citations omitted]; see Stolatis v Hernandez, 161 A.D.3d 1207, 1210 [2d Dept 2018]). The Court of Appeals further cautions that "hypertechnical parsing of a possible 'fact' from its plain context of 'opinion' loses sight of the objective of the entire exercise, which is to assure that-with due regard for the protection of individual reputation-the cherished constitutional guarantee of free speech is preserved" (Immuno AG. v Moor-Jankowski, 77 N.Y.2d at 256).
In considering the full context of the communication as well as the broader social context and surrounding circumstances, courts recognize that "[t]he culture of Internet communications, as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a freewheeling, anything-goes writing style" (Sandals Resorts Intl. Ltd. v Google, Inc., 86 A.D.3d 32, 43-44 [1st Dept 2011] [internal quotation marks and citation omitted]; see LeBlanc v Skinner, 103 A.D.3d 202, 213 [2d Dept 2012] ["Internet forums are venues where citizens may participate and be heard in free debate involving civic concerns" and "readers give less credence to allegedly defamatory Internet communications"]). While the internet does not inoculate all statements from liability, "New York courts have consistently protected statements made in online forums as statements of opinion rather than fact" (Jacobus v Trump, 55 Misc.3d 470, 479 [Sup Ct, New York County 2017, Jaffe, J.] [internal quotation marks and citation omitted] [Collecting cases], affd 156 A.D.3d 452 [1st Dept 2017], lv denied 31 N.Y.3d 903 [2018]; see Matter of Woodbridge Structured Funding, LLC v Pissed Consumer, 125 A.D.3d 508, 509 [1st Dept 2015] [disgruntled tone of statements on consumer grievance website constitute nonactionable opinion]; Matter of Konig v WordPress.com, 112 A.D.3d 936, 937 [2d Dept 2013] [statements made on an Internet blog during a sharply contested election constituted opinion]; Versaci v Richie, 30 A.D.3d 648, 649 [3d Dept 2006] [statement about plaintiff made in "rambling commentary" "on an Internet public message board... where people air concerns about any matter" was opinion], lv denied 7 N.Y.3d 710 [2006]; Brahms v Carver, 33 F.Supp.3d 192, 198-199 [ED NY 2014] [statement nonactionable opinion were "made on an internet forum where people typically solicit and express opinions"]).
ii. Standard of Fault
When alleged defamation "is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition, the party defamed may recover; however, to warrant such recovery he [or she] must establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties" (Chapadeau v Utica Observer-Dispatch, 38 N.Y.2d 196, 199 [1975]). While the "grossly irresponsible" standard clearly applies to media defendants, the Court of Appeals has not stated whether it applies to a nonmedia defendant. This Court is therefore bound by relevant Appellate Division precedent.
The Appellate Division, Fourth Department has explicitly held that "private defendants are entitled to be held to the same standard as the media defendant when the publication involves a matter of public concern" (Park v Capital Cities Communications, Inc., 181 A.D.2d 192, 197-198 [4th Dept 1992]; see also Mahoney v State of New York, 236 A.D.2d 37, 39 [3d Dept 1997] [applying the standard to a nonmedia state agency]; see generally Rupert v Sellers, 65 A.D.2d 473, 483 [4th Dept 1978] [Cardamone, J., concurring] ["Absent any suggestion to the contrary by the Court of Appeals, there is no reason to afford media defendants greater protection than private individuals sued for defamation"], affd 50 N.Y.2d 881 [1980]). Certainly, the "grossly irresponsible" standard "may not always be apt in the case of a nonmedia defendant" (McGill v Parker, 179 A.D.2d 98, 108 [1st Dept 1992]), however, "[w]hatever may be the rule with respect to purely private defamations having no nexus to the public media... a non-media individual defendant who utilizes a public medium for the publication of matter deemed defamatory should be accorded the same constitutional privilege as the medium itself" (Pollnow v Poughkeepsie Newspapers, Inc., 107 A.D.2d 10, 17 [2d Dept 1985], affd 67 N.Y.2d 778 [1986]).
iii. Civil Rights Law § 70-a, 76-a
"SLAPP suits-strategic lawsuits against public participation-... are characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future" (600 W. 115th St. Corp. v Von Gutfeld, 80 N.Y.2d 130, 137 n 1 [1992], cert denied 508 U.S. 910 [1993]; accord Mable Assets, LLC v Rachmanov, 192 A.D.3d 998, 999-1000 [2d Dept 2021]). "The New York State Legislature, in 1992, enacted Civil Rights Law § 70-a and § 76-a to provide heightened protections for defendants in actions which involve public petition or participation," (Hariri v Amper, 51 A.D.3d 146, 148 [1st Dept 2008]). In 2020, "the Legislature amended the relevant statutes to broaden the scope of the law and afford greater protections to citizens facing litigation arising from their public petition and participation" (Mable Assets, LLC v Rachmanov, 192 A.D.3d at 1000, citing L 2020, ch 250). The Court of Appeals has held that while Civil Rights Law § 70-a does not apply retroactively, liability attaches, if at all, when a plaintiff chooses to continue the defamation suit after the effective date of the statute (see Gottwald v Sebert, 40 N.Y.3d 240, 258-259 [2023]).
As relevant here, costs and attorney's fees are recoverable to Defendant if the action was "continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law" (Civil Rights Law § 70-a [a]). Further damages are available if the litigation was continued for the "purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights" (Civil Rights Law § 70-a [b], [c]).
IV. Analysis
"[A] physician would not ordinarily be considered a public figure" (Park v Capital Cities Communications, Inc., 181 A.D.2d at 197), however, statements regarding "medical treatment rendered by a physician's professional corporation and the physician" constitute statements on "a matter of legitimate public concern and public interest," particularly where published as online reviews (Aristocrat Plastic Surgery, P.C. v Silva, 206 A.D.3d 26, 32 [1st Dept 2022]; see Great Wall Med. P.C. v Levine, 74 Misc.3d 1224 [A], *1 [Sup Ct, New York County 2022, Goetz, J.]; see also Mirza v Amar, 513 F.Supp.3d 292, 300 [ED NY 2021]; see generally Ian Lewis-Slammon, Review Law: New York Defamation Applied to Online Consumer Reviews, 93 St John's L Rev 1267 [2019]).
In Sandals Resorts Intl. Ltd. v Google, Inc., (86 A.D.3d 32 [1st Dept 2011]), the Appellate Division, First Department provided an in-depth review of the context of Internet speech, outlining both the historical development of New York law and citing several law review articles on Internet speech. In one such article approvingly cited by the Court, Eirik Cheverud (Comment, Cohen v. Google, Inc., 55 NYL Sch L Rev 333, 334 [2010]) noted that "[s]cholars hail the Internet as humanity's nearest realization of Justice Oliver Wendell Holmes's utopian 'marketplace of ideas.'" There are low barriers preventing people from expressing their opinion on social media and people are not generally prevented from responding, allowing the free exchange of ideas. Further, the public is aware of the context and does not necessarily "attribute the same level of credence to the statements [that] they would accord to statements made in other contexts" (Jennifer O'Brien, Note, Putting a Face to a [Screen] Name: The First Amendment Implications of Compelling ISPs to Reveal the Identities of Anonymous Internet Speakers in Online Defamation Cases, 70 Fordham L Rev 2745, 2774-2775 [2002] [footnotes omitted]).
In recognizing the expansive protection of opinion under the New York Constitution, the Court of Appeals noted the critical role of letters to the editor to democratic free speech. The Court noted that the context gives signal to the statement's nature as opinion and the letter's inherent persuasiveness relies on the credibility of the writer, not on the belief that it is true merely because it is posted. "Significantly, for many members of the public, a letter to the editor may be the only available opportunity to air concerns about issues affecting them.... It is often the only way to get things put right" (Immuno AG. v Moor-Jankowski, 77 N.Y.2d at 252-253). Like the letter to the editor thirty years ago, social media gives an unfiltered outlet for people to state their opinion. And as noted by the Court of Appeals in Immuno,
"the availability of such a forum is important not only because it allows persons or groups with views on a subject of public interest to reach and persuade the broader community but also because it allows the readership to learn about grievances, both from the original writers and from those who respond"(Immuno AG. v Moor-Jankowski, 77 N.Y.2d at 253). Today, the public reasonably is aware of the nature of social media opinion, and while some may act in the extremes choosing to often allow their own bias to form the basis for their acceptance of such statement, the reasonable reader knows that both the disgruntled customer and the business or professional are presenting their opinion and perception of facts.
Plaintiffs assert that Defendant's statements that "if you support President Trump this Office will ask you to leave" and that Plaintiffs' "staff brought [Defendant's] to the Dr's attention and he said to LEAVE!" are false and constitute defamation per se because they accuse Plaintiffs of engaging in discriminatory and unethical conduct by refusing to see a patient based on political views.
Most of the individual statements in Defendant's Facebook post are either established as true or uncontested. When questioned, Plaintiff testified that he could not remember many of the pertinent details, such as whether he told Defendant to leave (see Silverman v Clark, 35 A.D.3d at 14 ["the credibility of a defendant's factual showing of truthfulness does not come into issue until the plaintiff makes it an issue by submitting contradictory evidence"]). Aside from Plaintiff's lack of recollection, it is uncontested that Defendant entered wearing a blue surgical mask [NYSCEF Doc No 47 ¶ 4; 102 ¶ 4 (Plaintiffs concede that Defendant entered wearing a blue mask. Plaintiffs' other assertions are based upon inadmissible hearsay)], wore a mask that said "TRUMP" and was reading a Glenn Beck book [NYSCEF Doc No 47 ¶ 8-9, 12; 102 ¶ 8-9, 12], staff informed Plaintiff that Defendant was wearing a mask that said "TRUMP" [NYSCEF Doc No 47 p 10-12 (Dr. Dadekian testified that his staff informed him that Defendant put on a mask that stated "TRUMP" on it)], Defendant was asked to leave [NYSCEF Doc No 4, ¶ 11 (Verified Complaint: "plaintiff Dadekian requested that defendant Laveway leave the premises"); NYSCEF Doc No 34 p 26 ("I was asked to leave"), 57 ("I was made to leave") 73-74 ("I recall him saying that, 'You just need to get out of my property, get off my property. Don't come back.'"); NYSCEF Doc No 35 p 78-79 (Plaintiff repeatedly testifies that he did not recall if he asked Defendant's mother to leave); NYSCEF Doc No 47, ¶ 13].
In Sandals (supra), an anonymous writer accused a major tourism company of benefitting from government subsides while only hiring Jamaicans of color for menial tasks. The Court noted that the plaintiff correctly pointed to statements that could be seen as assertions of objective fact and further that the implication of bias could be actionable, but found that in the context of the Internet, which promotes freewheeling emotional discourse, the statements must be understood as an assertion of opinion. Likewise here, Defendant accuses Plaintiffs of being biased and opines Plaintiffs will refuse to treat people with whom they disagree. This arguably could be considered an assertion of fact, however, the context, tone of the post, and the provision of underlying facts make clear that it is merely a statement of opinion. Readers of this post know that it is published on Facebook by a markedly irritated former customer. The post is also supplemented by the underlining facts that support Defendant's conclusion. Taken together, the Record demonstrates that, viewed in context, Defendant was sharing her opinion as to why her mother was denied service and her expectation that Plaintiffs would again behave that way in the future.
In another case factually similar to this action, a Federal court, applying New York law, considered the online review of a disgruntled patient (see Mirza v Amar, 513 F.Supp.3d 292, 300 [ED NY 2021]). There, the defendant urged others not to use the doctor's practice, accused the doctor of violating state orders regarding COVID, and of being a "sociopathic doctor who uses multiple aliases, works out of a gym bag, and [uses] water down DS filler" (id.). The court found that the context "adequately signals to the readers that this is just defendant's opinion as a disgruntled customer" (id.). The court finally noted that even if it could find that the statements were defamatory, as a matter of law, the court could not find the requisite standard of fault (see id.). Defendant here similarly accused Plaintiffs of inappropriate conduct, but the broader social context of the Facebook post demonstrates a reasonable reader would understand it as the disgruntled opinion of a dissatisfied prospective customer (see also Eros Intl., PLC v Mangrove Partners, 191 A.D.3d 465, 466 [1st Dept 2021] [series of social media posts constitutes nonactionable opinion, even when using the word "fraud," where the statements were accompanied by a recitation of facts on which they were based]; see generally Stolatis v Hernandez, 161 A.D.3d at 1210 [series of Facebook posts speculating on developer's alleged intent and referring to developer's actions as "crime" and the plaintiff as a "vampire," was a statement of nonactionable opinion]).
Plaintiffs argue that Defendant's subjective intent was to mislead the readers of her statements regarding Plaintiffs' conduct. They rely on Defendant's testimony that admitted she did not know at the time when she posted the Facebook comment why she was told to leave [NYSCEF Doc No 34 p 92 ("Q. What you said was, "He doesn't treat Trump supporters;" right? Correct? A. Correct. Q. You didn't know that to be true at the time you said that; right? A. I did not. Q. And you had no indication that that was true at the time that you did say it, did you? A. Correct.")]. Plaintiffs assert the real reason Defendant left was due to conflict over the COVID policies and she knew this but knowingly stated Plaintiffs were biased as retribution.
Like in Mirza and Great Wall Med. P.C. v Levine, (74 Misc.3d 1224 [A]), the Record does not demonstrate the requisite level of fault or a question of fact supported by evidentiary proof in admissible form that would allow a jury to find such conduct was made with the requisite level of fault. As outlined above, Plaintiffs concede most of the significant factual assertions from her Facebook post - she put on a mask that said "TRUMP" on the front, the doctor was told, and she was asked to leave.
There is not a basis in the Record upon which a jury could conclude Defendant knew she was told to leave solely because of COVID policies or choose to leave on her own volition because of COVID policies. In their Complaint, Plaintiffs assert that Defendant "refused to comply [with COVID policies], thereby threatening the health of Troy Arthritis Care staff, as well as any patients who would arrive thereafter, through possible exposure to COVID-19" [NYSCEF Doc No 4, ¶ 10], however, Plaintiff testified that the decision to not form a physician-patient relationship happened not because of refusal to follow policies, but "general uncooperativeness," her "objecting" to washing her hands in hot water, and her questioning needing to wear a mask [NYSCEF Doc No 35, p 72-83]. Plaintiff specifically testified that Defendant's mother "objected but didn't refuse" to comply [NYSCEF Doc No 35, p 83]. Defendant testified that Plaintiff refused to tell her why her mother received no treatment and why they were being told to leave [NYSCEF Doc No 47 ¶ 13-15]. Plaintiff testified that he did not recall who initiated that a physician-patient relationship was not going to work out [NYSCEF Doc No 35 p 77-81]. He did not recall where he went after, according to him, Defendant's mother left the examination room to return to the waiting room and leave [NYSCEF Doc No 35 p 85-86]. Plaintiff testified that Defendant "saying some uncomplimentary things and objecting to the masks and whatnot" and "that she knew there was another rheumatologist right up the road" [NYSCEF Doc No 35 p 87]. Plaintiff did not testify that he told Defendant that she and her mother needed to leave because of their general uncooperativeness and did not even testify as to who decided Defendant and her mother should leave. Plaintiff could not recall who made certain statements.
In addition to the comments in the Facebook post, both parties agree that when Defendant put her mask on, a staff member commented "My, we have a little Trump supporter here" and then staff began to look over at Defendant while whispering [NYSCEF Doc No 47 ¶ 10-12; 102 ¶ 10-12]. Therefore, the Record shows that Defendant put on a mask displaying a political statement, a comment was made about the political statement, staff whispered while looking at her, someone on the staff told Plaintiff about the mask, and Defendant was told to leave without explanation.
Contrary to Plaintiffs' characterization of Defendant's testimony as admitting she lacked a basis for her opinion, Defendant testified that "I knew that I had a Trump mask on and I was thrown out of [Plaintiffs'] office, and if there was another reason I was thrown out, I was never made privy to that" [NYSCEF Doc No 34 p 93]. Defendant further testified that "I feel it's true when I was asked to leave when I put on the Trump mask, and I feel - I strongly believe that if I had put on a mask with a horse on it or any other mask, I wouldn't have gone through that" [NYSCEF Doc No 34 p 104]. In concluding her testimony, Defendant further swore that even three years after the incident, she still felt that it had not been shown to her that her statements were inaccurate [NYSCEF Doc No 34 p 116].
This Record makes clear that there is no question of fact that a reasonable jury could find that the post "was made with the requisite level of fault" (Mirza v Amar, 513 F.Supp.3d at 300).
V. Conclusion
Defendant's opinion that others who share her political beliefs should stay away from Plaintiff's medical practice requires no more of a logical leap than Plaintiffs' own inferences in this case. Attributing certain negative occurrences to Defendant's statements, Plaintiff testified that a van appeared in his parking lot after the Facebook post and a person confronted one of his patients. He admitted attributing this conduct to Defendant's post because of the contemporaneous timing and "a series of coincidences of things" [NYSCEF Doc No 35 p 14, 32]. This, of course, is the nature of opinion and one employed by both Plaintiff and Defendant. Inferences are tested over time and can be proven wrong. People may draw views of bias in their life through their experiences and to deny them the ability to express such views based upon a fear of a lawsuit would dramatically diminish the free discussion of significant public concerns. While wary of the seemingly drastic increase in negative comments found in online forums and social media, this Court will not step in, stifle discussion, and impose liability based upon opinions, even when they may be proven incorrect.
The Court finds as a matter of law that the comments posted on social media by Defendant regarding a topic of public concern constitute protected opinion. To the extent Plaintiffs attempt to expand the litigation to Defendant's subsequent Google review, that post was even more clearly opinion as it was posted on a site dedicated to opinion and contained numerous grammatical errors that highlight the impassioned opinion of a disgruntled customer rather than a thoughtful recounting of facts. In so finding these comments nonactionable, the Court acknowledges that this is a close question. A professional's reputation is an integral part of his or her ability to work. Further, doctors and lawyers are subject to ethical confidentially restrictions that make responding to online statements more difficult. This is particularly important because part of the justification for New York's expansive protection of opinion is the ability of both sides to respond. While there are some cases on point, as noted above, this Appellate Department has not ruled on the relationship of Civil Rights Law and online doctor reviews, the Court of Appeals has not clarified the requisite level of fault required for liability when a private individual speaks on a matter of public concern involving a private actor, and the Court of Appeals has further repeatedly noted that distinguishing between assertions of fact and nonactionable expressions of opinion has often proved a difficult task. Considering this, the Court does not find this action was continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law. Therefore, an award of sanctions and/or fees would be inappropriate pursuant to the Civil Rights Law.
Accordingly, it is
ORDERED, Defendant's Motion for Summary Judgment dismissing the Complaint is hereby granted, and it is further
ORDERED, that Defendant's request for sanctions and attorney fees is denied, and it is further
ORDERED, that Plaintiffs' Motion for summary judgment is denied.
The Court has uploaded the original Decision/Order to the case record in this matter as maintained on the NYSCEF website whereupon it is to be filed and entered by the Office of the County Clerk.
Counsel for the Defendant is not relieved from the applicable provisions of CPLR 2220 and 202.5b (h) (2) of the Uniform Rules of Supreme and County Courts insofar as it relates to service and notice of entry of the filed document upon all other parties to the action/proceeding, whether accomplished by mailing or electronic means, whichever may be appropriate dependent upon the filing status of the party.
SO ORDERED AND ADJUDGED.